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Wednesday, March 22, 2017

The extent to which
methane emissions from natural gas development is an issue that requires
additional regulatory measures has been hotly contested across the country.
Proponents of more stringent requirements against oil and gas operators claim
that action is required to combat climate change while opponents of new
regulations claim that these regulations will impose unnecessary obligations
upon an important industry. On January 19, 2016, Governor Wolf issued a press
release announcing the proposed implementation of a strategy
plan by the Department of Environmental Protection (DEP) to reduce methane
emissions. In his press release, Governor Wolf declared that as “the
second-leading producer of natural gas in the nation behind Texas,
[Pennsylvania is] uniquely positioned to be a national leader in addressing
climate change while supporting and ensuring responsible energy development,
creating new jobs, and protecting public health and our environment.”

This strategy plan was
presented as an integral part of the updated
Pennsylvania Climate Change Action Plan, which was
published by DEP in August 2016. In the updated Climate Change Action Plan, DEP
stated that “Pennsylvania’s gross GHG emissions are projected to be lower in
2030 than in 2000, with reductions in the residential, commercial,
transportation, agriculture and waste sectors.”The strategy plan is comprised of specific measures including those
listed below:

·DEP plans to replace the August 2013 Category
No. 38 conditional permit exemption (exemption 38) for
unconventional wells with a new Air Quality General Permit for oil and gas
exploration, development, and production facilities, including well pads, known
as GP-5A. More precisely, unconventional wells in Pennsylvania are currently
exempted from air quality permitting requirements provided that the operator or
owner meets all application requirements established in the Category No. 38
exemption criteria. The new General Permit will establish requirements for the
use of Best Available Technology (BAT) for sources at unconventional natural
gas wells.

·DEP proposes to review the existing GP-5 applicable to sources located
at natural gas compressor stations and/or processing facilities and provides
for updates to the existing BAT requirements and Leak Detection and Repair
(LDAR) program for new sources. DEP also intends to amend and strengthen the
requirements for affected sources and expand the applicability of GP-5 to cover
sources located at natural gas transmission stations. To advance this
objective, in February 2017, DEP issued an updated Technical
Support Document addressing the new GP-5A permit for
Unconventional Natural Gas Well Site Operations and Remote Pigging Stations and
the revised GP-5 for Natural Gas Compressor Stations and/or Processing
Facilities.

·DEP plans to bring forward specific proposals to address existing source
emissions. In October 2016, U.S. EPA released its final Control
Techniques Guidelines (CTG) for the Oil and Natural Gas
Industry with recommendations to states to reduce VOC and methane emissions
from certain existing oil and gas industry emission sources.

·DEP will work through the Pennsylvania Pipeline Infrastructure Task
Force (PITF) to implement best management practices (BMPs), including best
available technology (BAT), to reduce fugitive methane emissions from oil and
gas industry infrastructure.

Following the
release of the strategy plan, three state senators from Pennsylvania – namely Senator
President Pro Tempore Joe Scarnati, Senate Majority Leader Jake Corman and
Senator Gene Yaw, Majority Chair of the Senate Environmental Resources and
Energy Committee– sent a letter to the Acting
Secretary of Environmental Protection, Patrick McDonnell, dated February 6,
2017, asking a number of key questions regarding the proposed revisions to the
existing GP-5 permit and the new proposed GP-5A permit.

The senators expressed
concern that such changes would “[add] new degrees of complexity to the
permitting and site construction process that may significantly impair the
competitiveness of the Commonwealth and strongly discourage the investment of private
capital into Pennsylvania.” They questioned DEP’s legal authority to look into
matters relating to methane emissions and asked for more information about the
scientific evidence gathered to establish methane limitations on the
unconventional oil and gas industry. In addition, the senators requested
further explanation regarding the cost-benefit analysis of proposed permits,
the content requirements for the permit application, and the legal
justification chosen to impose methane limitations on only the unconventional
oil and gas industry.

On February 24,
2017, Acting DEP Secretary Patrick McDonnell responded to the senators’
letter stating that “DEP believes that proposed GP-5A and the proposed
revisions to GP-5 balance the needs of industry for cost-effective operation
and the needs of the public for enhanced environmental protection.” In the same
letter, Secretary McDonnell also claimed that DEP is required to implement
federal regulations governing control of methane emissions pursuant to Section
4 of the Air Pollution Control Act and the Clean Air Act permitting in Pennsylvania.
With regard to the omission of the conventional oil and gas industry, Secretary
McDonnell reasoned that it comprises a small portion of total gas production in
Pennsylvania and is addressed through EPA requirements.

The draft GP-5 and GP-5A permits are
available for public comment until June 5, 2017.

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The Center for Agricultural and Shale Law (CASL) provides information and educational programs on agricultural and shale law and policy for producers and agribusinesses, attorneys, government officials, and the general public. The Center does not provide legal advice, nor is its work intended to be a substitute for such advice and counsel.